State v. Musayev3/4/2002
ve used the video to determine who witnessed the event, but he fails to point out any additional witnesses revealed by the tape. Nor did the prosecutor's decision to play the tape constitute actual prejudice. Once defense counsel told the jury about the existence of the tape, the prosecutor reasonably decided to show it to the jury in order to demonstrate its lack of evidentiary value.
Musayev also claims that the tape contains material, relevant impeachment evidence, and that police mishandling of the tape violated his right to a fair trial. Due process in criminal prosecutions requires fundamental fairness and a meaningful opportunity to present a complete defense. State v. Wittenbarger, 124 Wn.2d 467, 474-75, 880 P.2d 517 (1994). The State's failure to preserve evidence does not violate a defendant's due process right unless it is 'material exculpatory evidence{,}' meaning evidence possessing 'an exculpatory value that was apparent before it was destroyed' and 'of such a nature that the defendant would be unable to obtain comparable evidence by reasonably available means.' Id. at 475, citing Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), and California v. Trombetta, 467 U.S. 479, 104 S. Ct. 2528, 81 L. Ed. 2d 413 (1984). The United States Supreme Court has extended this duty to encompass material impeachment evidence as well as material exculpatory evidence. United States v. Bagley, 473 U.S. 667, 676, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985). Evidence is deemed material 'if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.' Strickler v. Greene, 527 U.S. 263, 280, 119 S. Ct. 1936, 144 L. Ed. 2d 286 (1999). Under Brady, the good or bad faith of the State is irrelevant when the State fails to disclose material exculpatory evidence. State v. Copeland, 130 Wn.2d 244, 279-80, 922 P.2d 1304 (1996), citing Arizona v. Youngblood, 488 U.S. 51, 57, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988).
However, failure to preserve evidence that is merely "potentially useful" does not violate due process unless the defendant shows bad faith on the part of the State. Wittenbarger, 124 Wn.2d at 477.
After viewing the videotape, we conclude that it contains neither material evidence nor impeachment value. There is no reasonable probability that the result of the proceeding would have been different had the defendant obtained the videotape before trial commenced. Therefore, there is no due process violation unless Musayev can show bad faith on the part of the State. We agree that the police should have informed the prosecutor of the tape, so that the prosecutor could independently evaluate the tape, come to her own conclusions about its evidentiary value, and pass it to defense counsel if appropriate. However, there is no evidence of bad faith here, and no violation of due process.
Next, Musayev argues that Davidyants was improperly allowed to state an opinion concerning Musayev's guilt, thereby substantially tainting the jury's verdict, and violating his constitutional right to a jury trial. Over the objection of defense counsel, the State questioned Davidyants as follows:
Q: Given the words Mr. Musayev was speaking, where he told you I told you not to come here before, and that he came up behind you with a knife, do you have any doubt as to whether or not Mr. Musayev tried to cut your throat?
A: There can't be any doubt because, as I said before, if it hadn't been for my thumb he very probably would have slit my throat. 6 Report of Proceedings at 107.
'The general rule is that no witness, lay or expert, may 'testify to his opinio
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